Colburn v. Chattanooga Western R. Co.

• Decision Date: 08 November 1894
• Parties: COLBURN et al. v. CHATTANOOGA WESTERN R. CO. et al.
• Court: Tennessee Supreme Court

28 S.W. 298

94 Tenn. 43

COLBURN et al. v. CHATTANOOGA WESTERN R. CO. et al.

Supreme Court of Tennessee.

November 8, 1894

Appeal from chancery court, Hamilton county; W. L. Eakin, Special Chancellor.

Action by W. J. Colburn and others against the Chattanooga Western Railroad Company and the county of Hamilton to enjoin the delivery to the railroad company of bonds of the county. A demurrer to the bill was overruled, and defendants appeal. Affirmed.

T. D Young, W. H. De Witt, and Thomas & Elder, for appellants.

Shepherd & Frierson, for appellees.

WILKES J.

This is an injunction bill brought by two taxpayers of Hamilton county to enjoin the delivery to the railroad company of certain bonds of the county, issued to secure the building of a free wagon and foot bridge across the Tennessee river, at Chattanooga, and to have the bonds declared void and canceled. The defendants, county of Hamilton and Chattanooga Western Railroad Company, demurred to the bill; and, on hearing, Special Chancellor W. L. Eakin overruled the demurrer, and made the injunction perpetual, but, in the exercise of his discretion under the statute, granted an appeal, which was taken, and the county and railroad company have assigned errors.

The facts, so far as necessary to be stated, are that at the July term, 1893, of the quarterly court of Hamilton county, the defendant railroad company made a proposition to the court looking to joint action and cooperation in building a combined railway, wagon, and foot bridge across the Tennessee river, from Chattanooga to the west bank of the river, at what is known as "Moccasin Bend." This proposition the court rejected, but, in lieu, took action as follows: The court, by resolution, determined and resolved (reciting that it was a county purpose, and, in the discretion, judgment and opinion of the court, to the best interests of the county and the public welfare) that it, for county purposes, would build a wagon and foot bridge between the points mentioned. The resolution further recited that the cost of the bridge would exceed the amount which could be realized from special taxation during the period covered by its erection, and that in order to build and pay for the same it would be necessary for the county to issue $150,000 of its bonds, bearing 5 per cent. interest, and running 20 years to maturity, of the denomination of $1,000 each, and to be sold at not less than par. The court thereupon resolved, in substance, that if the defendant railroad company would, (1) in connection with its road and branches, construct a railroad bridge between the termini mentioned; (2) as a part of said railroad bridge, and above the same, construct for the county, and for county purposes, a free wagon and foot bridge; (3) make the bridge, abutments, and approaches of size and strength and according to plans approved by the county; (4) vest in the county the fee simple, unincumbered title to the railroad right of way, 100 feet in width, for the distance of 1 mile from the north end of the bridge; (5) begin the work within six months, and finish it within three years, including a main line from Chattanooga to Middle Creek, and a branch from Middle Creek to the crest of Waldon ridge, 25 miles distant from Chattanooga, and a branch from the end of the bridge, along the north side of the river, to a connection with the Cincinnati Southern Railroad; (6) guaranty to continually maintain the foundation, piers, and other substructures of the bridge so as to keep the county's wagon and foot way thereon safe, secure, and unimpaired; (7) allow any other railway to use the bridge and 5 miles of the defendant's railroad track, of main line; and (8) would carry, and require all other roads using the bridge to carry, all coal and coke from any point on the line within 25 miles of Chattanooga to any point in the city or suburbs at a freight rate of not more than 25 cents per ton,-then, when all these conditions shall be agreed to by the railroad company, the county would issue $150,000 of its bonds, and place the same in the First National Bank of the city, within 90 days after the proposition of the county was accepted, to be delivered to the railroad company only when the bridge and lines of railway are fully completed and the conditions of the contract met, and the bridge paid for by the railroad company, and properly tested, and when so delivered to be in full payment and satisfaction for the construction of the said free wagon and foot bridge built for the county; the railroad company to have an easement over the strips of land vested under the agreement in the county so long as the contract provisions were complied with by the railroad company, but not longer. It was further resolved that the contract instrument should be registered, and its conditions and provisions run with the road and bridge and right of way, into whatever hands they might thereafter pass. On the same day that this resolution was passed, the railroad company, in open court, accepted its provisions in writing, and the court thereupon passed a resolution authorizing the issuance of the bonds, and their delivery to the bank; and the county judge and bridge committee were authorized and directed to see to the erection on the top of the railroad bridge of the wagon and foot bridge provided for in the resolutions and agreement.

The demurrer to the bill proceeds upon the idea, among others of less importance, (1) that the contract thus entered into constituted a giving or loaning of the credit of the county to the railroad without submitting the same to a vote of the people of the county, contrary to the spirit and letter of the constitution; (2) that it was an effort on the part of the county, without such election being held, to become a stockholder with the railroad company in the bridge and right of way; (3) that there was no public necessity for the bridge; (4) that there was no public road to the bridge on either side of the river; (5) that it was beyond the power of the county to be the joint owner, in such manner, of the bridge.

For defendants, it is argued that such contract is authorized by and in conformity with the constitution and general laws of the land; that the chancery court has no jurisdiction to inquire into the necessity, utility, or propriety of building a bridge, or its location or time of erection, or as to the levy of taxes to pay for the same, because all these matters are exclusively in the discretion of the county court; that the contract is not prohibited by any statute or the constitution, and the acts relied on to sustain the contract are constitutional, and the contract is not one giving or loaning the credit of the county to a railway, or becoming a stockholder therein.

Whether the arrangement proposed to be entered into by the county is a judicious one, and for the best...